Talmud - Bava Kamma 42a בבא קמא מ״ב א׳

When he finds big ones he takes them, and when he finds small ones he takes them as well. Here too, although Rabbi Eliezer’s first explanation was sufficient, he added an additional response, despite the fact that it was not as good as the first.

By contrast, Rav Tavyumei said in the name of Rava that he first said to him the explanation involving inconclusive testimony asserting that the ox killed, since this is analogous to a fisherman pulling fish from the sea, who finds small ones and takes them, and when he then finds big ones, he discards the small ones and takes only the big ones. Here too, once Rabbi Eliezer thought of a better response to Rabbi Akiva’s question, he suggested it instead of the first.

§ It is taught in another baraita with regard to the verse: “The owner of the ox shall be clear,” that Rabbi Yosei HaGelili says: It means he shall be clear from paying compensation for miscarried offspring. In other words, if an innocuous ox causes a woman to miscarry, the owner is not liable to pay half the compensation for the miscarried offspring.

Rabbi Akiva said to him: It is unnecessary for the verse to teach this. Doesn’t it say with regard to paying compensation for miscarried offspring: “If men struggle and hurt a pregnant woman and her offspring emerge, and there is no tragedy, he shall be punished as the husband of the woman shall impose upon him and he shall give as the judges determine” (Exodus 21:22); from which it is inferred that men who cause a woman to miscarry are liable to pay compensation for the offspring, but the owner of oxen who cause a woman to miscarry is not liable?

The Gemara comments: Rabbi Akiva is saying well; he states a reasonable objection. What would Rabbi Yosei HaGelili have responded to him?

Rav Ulla, son of Rav Idi, said: It was necessary for the verse to teach this exemption, as otherwise it might enter your mind to say that this inference should be limited, as follows: Men are liable to pay compensation for miscarried offspring, but the owner of oxen that are comparable to men is not liable. Only some oxen are excluded from this halakha. Just as men are categorically considered forewarned, so too the oxen, which are contrasted with men in this case, are considered forewarned as well. But in the case of miscarriage caused by an innocuous ox, its owner would be liable to pay compensation for miscarried offspring. Therefore, the Merciful One wrote with regard to an innocuous ox: “The owner of the ox shall be clear,” to teach us that he is exempt from liability.

Rava said, in objection to this answer: The native is on the ground and the stranger is in the heavens! The aforementioned suggestion contradicts the principle that the halakha of a forewarned ox is more stringent than that of an innocuous ox.

Rather, Rava said a different way for Rabbi Yosei HaGelili to counter Rabbi Akiva’s objection: It was necessary for the verse to teach this exemption, as otherwise it might enter your mind to say that only men are liable to pay for miscarried offspring, but the owner of oxen that are comparable to men is not liable. Just as men are categorically considered forewarned, so too the oxen, which are contrasted with men in this case, are considered forewarned as well. And for miscarriage caused by innocuous oxen, their owners are also exempt due to an a fortiori inference. The Merciful One then wrote that the owner of the innocuous ox shall be clear, indicating that only for an innocuous ox is one exempt from paying compensation for miscarried offspring, but for a forewarned ox the owner is liable.

Abaye said to him: If that is so, then with regard to compensation for humiliation, which is derived from the verse: “When men struggle together, a man and his brother, and the wife of one drew near to deliver her husband from the hand of the one who smites him, and extended her hand, and grabbed his genitals” (Deuteronomy 25:11), let us say this as well: Only men are liable to pay for humiliation, but the owner of oxen that are comparable to men is not liable. Just as men are categorically considered forewarned, so too the oxen, which are contrasted with men in this case, are considered forewarned as well. And for humiliation caused by innocuous oxen, their owners are also exempt due to an a fortiori inference. The Merciful One then wrote that the owner of the innocuous ox shall be clear, indicating that only for an innocuous ox is one exempt from paying compensation for humiliation, but for a forewarned ox the owner is liable.

And if you would say that indeed that is the halakha according to Rabbi Yosei HaGelili, if so, let the baraita teach that with regard to the verse: “The owner of the ox shall be clear,” Rabbi Yosei HaGelili says: He is exempt both from paying compensation for miscarried offspring and from paying compensation for humiliation.

Rava then retracted this explanation of Rabbi Yosei HaGelili’s opinion. Rather, Abaye and Rava both say that Rabbi Akiva’s inference is correct, according to Rabbi Yosei HaGelili, but with regard to the continuation of the verse: “But if any harm follows, you shall give life for life” (Exodus 21:22). With regard to men, if there is no harm caused to the woman, i.e., she is not killed, they shall be punished financially and are liable to pay compensation for miscarried offspring. But if there is harm caused to the woman and she dies, they shall not be punished financially, as they are liable to receive court-imposed capital punishment. This distinction applies only with regard to men but not with regard to oxen, as even if there is harm caused to the woman, the owners shall be punished financially. In order to preclude this inference, the Merciful One then wrote: “The owner of the ox shall be clear,” to teach that he is exempt from paying compensation for miscarried offspring.

Rav Adda bar Ahava objects to this: Is that to say that the issue of financial liability is dependent on whether or not there was harm caused to the woman? Clearly, the issue is dependent on the intent to strike the woman.

Rather, Rav Adda bar Ahava said a different inference: With regard to men, in a case where they intended to strike each other, even if there is harm caused to the woman, i.e., she dies, they shall be punished financially, and are liable to pay compensation for miscarried offspring. But when they intended to strike the woman herself they shall not be punished financially, as they are liable to receive court-imposed capital punishment. But this distinction does not apply with regard to oxen, as even if they intended to strike the woman herself, their owners shall be punished. In order to preclude this inference, the Merciful One wrote: “The owner of the ox shall be clear,” to teach that the owners are exempt from paying compensation for miscarried offspring.

And similarly, when Rav Ḥaggai came from the South, he came and brought a baraita in his hand that interprets the verse in accordance with the explanation of Rav Adda bar Ahava.

§ It is taught in another baraita with regard to the verse “The owner of the ox shall be clear” that Rabbi Akiva says: This statement teaches that if an innocuous ox kills a Canaanite slave, its owner shall be clear from paying compensation for the slave, unlike the case of a forewarned ox that killed a Canaanite slave, where the ox’s owner is liable.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 42a examines Rabbi Eliezer's evolving arguments before Rabbi Akiva, then debates whether an ox owner owes compensation for a miscarriage it causes.